Wickey v The Queen (No 2)

[2012] ACTCA 51

ROBERT LACHLAN WICKEY v THE QUEEN (NO 2)
[2012] ACTCA 51 (10 September 2012)

APPEAL AND NEW TRIAL – Jurisdiction, practice and procedure – Court Procedures Rules 2006 (ACT) r 6906 – Test for “mistake” – Error in sentence commencement date a mistake – Applicability of r 6906 to appellate criminal proceedings – Jurisdiction of single judge to correct mistake of the Full Court – Words and phrases – “Judgment” includes sentence.

Crimes (Sentencing) Act 2005 (ACT), s 63
Supreme Court Act 1933 (ACT), s 37

Court Procedures Rules2006 (ACT), ch 6, rr 5001, 6000, 6906

Australian Communication and Media Authority v Clarity1 Pty Ltd (2009) 173 FCR 297
Burrell v The Queen (2008) 238 CLR 218
Cawood v Infraworth Pty Ltd [1990] 2 Qd R 114
Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566
Hatton v Harris [1892] AC 547
Hawkins v Hawkins (2009) 3 ACTLR 210
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
R v Cripps; Ex Parte Muldoon [1984] 1 QB 686
Sidorov v Sidorov (No 2) [2008] FamCA 1102
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Wickey v McVicar [2012] ACTCA 38
Wickey v McVicar [2011] ACTSC 159
Jovanovic (1999) 106 A Crim R 548

EX TEMPORE JUDGMENT

No. ACTCA 49 – 2011
No. SCA 26 of 2011

Judge:             Refshauge J
Court of Appeal of the Australian Capital Territory

Date:              10 September 2012

IN THE SUPREME COURT OF THE     )          
  )          No. ACTCA 49 – 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )          No. SCA 26 of 2011
COURT OF APPEAL  )

ROBERT LACHLAN WICKEY

v

THE QUEEN

ORDER

Judge:  Refshauge J
Date:  10 September 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The orders of the Court made on 2 August 2012 be amended as follows:

a.        by omitting “17 April 2011” and substituting “17 April 2010”;  and

b.        by omitting “16 February 2014” and substituting “16 February 2013”.

1. Any warrants issued in reliance on the Court’s order be amended to be consistent with order 1.

1. The appellant, Robert Lachlan Wickey, was sentenced in the Magistrates Court to a total term of imprisonment of five years for 11 different offences, to which he had pleaded guilty. 

1. He appealed to the Supreme Court, which on 12 September 2011 dismissed the appeal, save to reduce the sentence for one offence. Because of the order in which the sentences were cumulated, the reduced sentence was already wholly concurrent on other sentences, so that the reduction did not vary the total sentence.  The Court also amended the start date for the sentence by a few days, in circumstances to which I will refer later. 

1. Mr Wickey then appealed to this Court which, on 2 August 2012, upheld the appeal and reduced the sentence to a total term of imprisonment of four years and three months.  The Court directed that the sentence commence on 17 April 2011.  The appeal has, however, been re-listed before me because of a question about the date on which the sentence should commence.

THE FACTS

1. In order to understand the issue, it is necessary to rehearse some of the facts of the case.  The following facts can be determined from the Appeal Papers filed in this Court.  Regrettably, the dates in this matter have been riddled with errors from the very start.

1. Mr Wickey was originally arrested on 25 February 2010 and granted bail to appear on 19 March 2010.  On 26 February 2010, he failed to report in accordance with a condition of his bail and, on 9 March 2010, a warrant was issued for his arrest in relation to fresh charges.  He failed to appear in court on 19 March 2010.

1. On Thursday 15 April 2010 he was arrested in Tamworth, New South Wales on an unrelated matter.  For reasons that are not clear, both the learned sentencing magistrate and the learned appeal judge stated the date of arrest as 16 April 2010, however, that appears to have been an error. Extradition was organised.  Mr Wickey appeared in the Tamworth Local Court on 16 April 2010 and a bail application made on his behalf was refused.  The police statement of facts in the ACT then records that  “on Saturday 17 March 2010 ... he was released into the custody of Australian Federal Police (AFP) members and arrested ... and flown to the ACT.”  Clearly, that should have been “Saturday 17 April 2010”. 

1. Mr Wickey appeared in the ACT Magistrates Court on 19 April 2010 and bail was refused.  He has remained in custody since that time.  Curiously, the next appearance in the Magistrates Court is shown on the relevant bench sheets as: “03 APR 2010”.  I can only assume that this should read “30 APR 2010”.

1. He appeared, thereafter, a number of times in the Magistrates Court.  I counted an additional 11 appearances until he was sentenced on 20 April 2011.  Despite the regrettable number of appearances, it has to be said that a number of further charges were laid on 24 June 2010 and 2 September 2010.

1. It appears that the proximity of the day and month of the date of the sentencing in the Magistrates Court, namely 20 April 2011, to the day and month of the date one year before when he was first refused bail and remanded in custody, namely 17 April 2010, has been the source of some of the confusion.

1. The sentences were then imposed and the learned sentencing magistrate said:

The sentence is to commence on 19 April 2010, which is the date that you were taken into custody.  The head sentence is to end on 18 April 2015.  The non-parole period of three years is to end on 18 April 2013.

1. It appears that her Honour was influenced by the fact that 19 April 2010 was, of course, the date when bail was first refused in the ACT Magistrates Court for the offences for which Mr Wickey was sentenced, though he was in the custody of the Australian Federal Police from 17 April 2010.

THE APPEAL TO THE SUPREME COURT

1. As noted above (at [2]), the appeal to the Supreme Court was largely unsuccessful but one sentence was reduced:  Wickey v McVicar [2011] ACTSC 159.

1. The primary judge, however, did expressly address the starting date of the sentences when he said (at [2]):

It is conceded by the prosecution that her Honour was in error in commencing the sentences imposed from the date when her Honour passed down sentence, that being 20 April 2011.  It is conceded that the appellant had been in custody with respect to these matters from 17 April 2011 and as such, 17 April 2011 should have been the commencement date for the sentences imposed by her Honour. I’ll come back to that in due course. 

1. That was clearly an error, for her Honour had articulated the commencement of the sentence as 19 April 2010, as noted above.  Why his Honour said 20 April 2011 instead of 19 April 2010 is unclear; it may have been because Mr Wickey was sentenced on 20 April 2011. 

1. The facts were, of course, that Mr Wickey had been arrested on 15 April 2010 and had been refused bail on 16 April 2010.  He was in the custody of Australian Federal Police officers in respect of the matters for which he was sentenced in the Magistrates Court from 17 April 2010, when he was released by the Tamworth Local Court into their custody.

1. His Honour was well aware of the intention of backdating the sentence and referred to the need to correct the actual dates of that to conform with the date when Mr Wickey first went into custody.  That is clear from the transcript which records the discussions with counsel.  Later his Honour continued (at [10]):

I am unpersuaded that the total sentence imposed by her Honour was so excessive as to reveal error in the application by her Honour of the totality principle. However, as I have already noted, it has been conceded that the sentence imposed by her Honour is defective in that it should have commenced on 17 April 2011 rather than 20 April 2011. So with regard to the remainder of the appeal, it seems to me that the appropriate way to deal with it is to set aside the date for commencement of the sentences with respect to matters 5624 and 7797 of 2010, reimpose the sentences, but from 17 April 2011.

1. His Honour then made the orders consistent with these reasons.  As the judgment was delivered ex tempore, the error was clearly not picked up in the process of proofing the reasons for judgment.  Regrettably, it was not noticed when the reasons were prepared for publication after that.

THE APPEAL TO THIS COURT

1. The decision in this Court was also delivered ex tempore:  Wickey v McVicar [2012] ACTCA 38. It clearly relied on the decision of the Supreme Court as to the starting date for the sentence. Mr Wickey was not represented in the appeal and this may be why the error, to which I will refer below, was not noted.

1. The Court reduced some of the individual sentences and varied some of the cumulation of the sentences.  It then said (at [26]):

The non-parole period set by Magistrate Doogan was three years, representing 60 percent of the total sentence that her Honour imposed.  Having regard to Mr Wickey’s apparently poor prospects of rehabilitation left to himself, and to his very poor criminal record, we consider that a longer proportionate non-parole period is appropriate. So we would set a new non-parole period of two years and 10 months, which represents 67 percent or two-thirds of the total sentence.

1. It is clear that there was no intention to alter the starting date of the sentences.  In re-sentencing the Court said (at [29]):

Your appeal is upheld to the extent necessary, as already indicated, and you are re-sentenced now to imprisonment for a total period of four years and three months, made up of the periods that we have already specified.  That sentence is backdated to 17 April 2011 and will run till [sic] 16 July 2015.  The non-parole period will be two years and 10 months and will expire on 16 February 2014.

1. There was no reference in the reasons for judgment to suggest other than that the Court was reliant on the sentence start date re-set by the learned appeal judge in the Supreme Court.

WHAT CAN BE DONE ABOUT THE SENTENCE?

1. It is, in my view, quite clear that there has been an error in the sentence imposed, in that it commences 12 months after the date when it was clearly intended by all the courts to commence. When I say “intended to commence” I mean, of course, that all the courts sentencing Mr Wickey were, in my view, clearly intending to give effect to s 63 of the Crimes (Sentencing) Act 2005 (ACT).

1. As I pointed out in Hawkins v Hawkins (2009) 3 ACTLR 210 at 223–31; [61]–[102], the taking of pre-sentence custody into account in sentencing should be an ordinary incident of sentencing and preferably done by back-dating the sentence. That none of the courts referred to any reason why the pre-sentence custody should not be taken into account is a very powerful factor leading, in my view, to the inevitable conclusion that it was intended to be taken into account. The sentence imposed on re-sentencing by this Court, therefore, should be varied to correct the error in the date of commencement.

1. Rule 6906 of the Court Procedures Rules2006 (ACT) permits orders of a court to be amended if, inter alia, (a) there is a clerical mistake in the order; and (b) the mistake or error resulted from an accidental slip or omission. The general test for application of this rule was stated by Lord Herschell in Hatton v Harris [1892] AC 547 at 558, approved by McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987)
   9 NSWLR 446 at 453: “In general, the test of whether a mistake or omission is accidental is ... if the matter had been drawn to the court’s attention, would the correction at once have been made?”

1. In my view, there is no doubt that the answer to this question would be in the affirmative.  See also Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995)
   61 FCR 385 at 390-1, 404. This is not an error that seems to me to be a consequence of a deliberate decision of any of the courts: Cawood v Infraworth Pty Ltd [1990] 2 Qd R 114 at 122. It is not an error that has been made as a result of the exercise of an independent discretion on a matter where a real difference of opinion exists: Sidorov v Sidorov (No 2) [2008] FamCA 1102 at [10]. A correction of this error does not alter the substance of what in fact has been ordered, in the sense that the period of imprisonment is not altered, only the dates during which it is to be served. See Burrell v The Queen (2008) 238 CLR 218 at 224–5; [21].

1. In Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566 at 568; [4], Wilcox and Allsop JJ explained that the exception to finality constituted by the rule is “designed to permit justice and fairness in the particular case, in appropriate circumstances.” It is, as Malcolm CJ, with whom Kennedy J agreed, said in Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524, “to rectify situations of injustice”.

1. There can be no doubt that the increase of the imprisonment of an offender by a period of one year is an injustice if that increase was neither intended nor in accordance with the appropriate statutory regime that applied to the sentencing of the offender.  There is no doubt, from the facts I have already outlined and from the reasons of the respective courts, that the error was not intended and was caused by the similarity of the dates on which Mr Wickey was taken into custody and when he was sentenced.

1. The only question then is whether r 6906 of the Court Procedures Rules applies and whether I can act under it. Rule 6906 is in ch 6 of the Court Procedures Rules.  Rule 6000 states that the chapter “applies to every proceeding in the Supreme Court or the Magistrates Court to which these rules apply”, unless there is an express exception.  There is no such express exception. 

1. This Court is, of course, the Supreme Court exercising appellate jurisdiction:  Supreme Court Act 1933 (ACT) s 37E; Burrell v The Queen at 231; [52]. The note to r 5001 supports that conclusion. The rule, in my view, clearly applies to proceedings in this Court. The rule also applies to criminal proceedings; so much is clear from r 6000. In any event, it is implicitly clear that this is so from decisions such as Jovanovic (1999) 106 A Crim R 548 at 560; [61]–[63] and Burrell v The Queen at 233–4; [62]–[64].

1. An order, as referred to in the rule, is defined in the Dictionary to the Rules as including “a judgment, decree, direction or decision, whether or not final”.  It seems to me that a sentence is within that definition.  It is the judgment of the Court.  It is clearly a decision of the Court; indeed the terms of what the Court did in this case was “The Court orders that ... The appellant is re-sentenced”.

1. I am satisfied that, not only are the conditions for the exercise of the jurisdiction of r 6906 made out, but that it is appropriate in the circumstances. As I was not, however, a member of the Court which decided the appeal, a question arises as to whether I can apply the rule to amend the order, especially as a single judge of the Court.

1. As to the latter position, I have no doubt that Supreme Court Act s 37J empowers a single judge to exercise the Court’s power in certain matters, including:

(d)      amendment or stay of an order of the court from which the appeal is brought;  

...

(k)       any other question of practice and procedure in the Court of Appeal.

1. Thus, a single judge can amend the order of the Supreme Court on the appeal from the Magistrates Court.  It is probably not necessary in this case for me to do so.

1. There is no doubt that application of r 6906 is a matter of practice and procedure. So much must follow from a decision such as Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247, where a rule of wider import, namely permitting the Court to set aside a summary judgment, was held by an unanimous Full Court to be validly made under the power to make rules for “regulating the pleading practice and procedure of the court”.

1. Finally, I note that all the judges who sat on the appeal are presently unavailable and will be so for some time on leave.  Clearly, it would be desirable for one of the judges who constituted the Court to have determined the matter.  On the other hand, there is a need to resolve this issue sooner rather than later.  Mr Wickey will, in the circumstances of the sentence that was clearly intended, be eligible for parole in about five months, not 17 months.  I can take notice of the fact that such an application takes time to prepare and be heard by the Sentence Administration Board, especially given that some of the time will be taken up by the Christmas-New Year period.  That gives some element of necessity to the matter.

1. I am fortified in my view by the decision of McKerracher J in Australian Communication and Media Authority v Clarity1 Pty Ltd (2009) 173 FCR 297, where his Honour exercised the Court’s power under the slip rule, though he was not the trial judge. In that case the trial judge had retired, but it seems to me that the principle applies where the appellate judges are unavailable through being on leave.

1. As Donaldson MR, speaking for the Court of Appeal, said in R v Cripps; Ex Parte Muldoon [1984] 1 QB 686 at 695:

The slip rule power is not a power granted to a trial judge as such.  It is one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge.

1. Accordingly, I am satisfied that I have the power under r 6906 of the Court Procedures Rules to vary the sentence imposed by starting the sentence of the Court on 17 April 2010 and making the other relevant amendments to the Court’s order.  I shall accordingly make appropriate orders.

1. I order that:

(1)       the orders the Court made on 2 August 2012 be amended as follows:

(a)       by omitting “17 April 2011” and substituting “17 April 2010”;  and

(b)       by omitting “16 February 2014” and substituting “16 February 2013”.

(2)       any warrants issued in reliance on the court’s order should be amended to be consistent with order (1).

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:  2012

Counsel for the appellant:  The appellant appeared in person
Counsel for the respondent:  Mr S Drumgold
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  10 September 2012
Date of judgment:  10 September 2012